Citation Nr: 1040426
Decision Date: 10/27/10 Archive Date: 11/01/10
DOCKET NO. 07-03 595 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to service connection for psoriasis, claimed as a
skin condition.
2. Entitlement to service connection for hypertension including
as secondary to service connected post traumatic stress disorder
(PTSD).
3. Entitlement to service connection for sleep apnea including
as secondary to service connected PTSD.
4. Entitlement to service connection for peripheral neuropathy
of the left upper extremity also claimed as carpal tunnel
syndrome, including as caused by herbicide exposure.
5. Entitlement to service connection for peripheral neuropathy
of the right upper extremity also claimed as carpal tunnel
syndrome, including as caused by herbicide exposure.
6. Entitlement to service connection for peripheral neuropathy
of the left lower extremity including as caused by herbicide
exposure.
7. Entitlement to service connection for peripheral neuropathy
of the right lower extremity including as caused by herbicide
exposure.
8. Entitlement to an initial evaluation in excess of 50 percent
for posttraumatic stress disorder from December 2004 to May 2008.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
John Francis, Counsel
INTRODUCTION
The Veteran served on active duty from January 1968 to October
1969.
This appeal comes before the Board of Veterans' Appeals (Board)
from a June 2005 rating decision of a Department of Veterans
Affairs (VA) Regional Office (RO) that, in pertinent part, denied
service connection for the seven disabilities identified in
issues 1 through 7.
The matter is also before the Board from a December 2006 decision
in which the RO granted service connection and a 30 percent
rating for PTSD, effective December 2004, the date of receipt of
the claim.
In September 2008, the Board remanded these matters for
additional development.
In April 2010, the RO granted an increased initial rating of 50
percent, effective December 2004, and a staged rating of 100
percent, effective May 2008, for PTSD.
The issue of an initial rating in excess of 50 percent for
PTSD prior to May 2008 is addressed in the REMAND portion
of the decision below and is REMANDED to the RO via the
Appeals Management Center (AMC).
FINDINGS OF FACT
1. The Veteran's psoriasis first manifested after service and is
not related to any aspect of service including exposure to
herbicides.
2. The Veteran's hypertension first manifested greater than one
year after service and is not related to any aspect of service
including exposure to herbicides or as secondary to PTSD.
3. There is no credible lay or medical evidence of a current
diagnosis of sleep apnea.
4. There is no credible lay or medical evidence of symptoms or a
diagnosis of acute or subacute peripheral neuropathy within
months of exposure to herbicides.
5. The Veteran's peripheral neuropathy of the upper extremities
and bilateral carpal tunnel syndrome first manifested greater
than one year after service and are not related to any aspect of
service.
6. The Veteran's peripheral neuropathy of the lower extremities
first manifested greater than one year after service and is not
related to any aspect of service.
CONCLUSIONS OF LAW
1. The criteria for service connection for psoriasis claimed as
a skin condition have not been met. 38 U.S.C.A. §§ 1110, 1116
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
2. The criteria for service connection for hypertension have not
been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009).
3. The criteria for service connection for sleep apnea have not
been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303,
3.310 (2009).
4. The criteria for service connection for peripheral
neuropathy of the left upper extremity and carpal tunnel syndrome
have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
5. The criteria for service connection for peripheral neuropathy
of the right upper extremity and carpal tunnel syndrome have not
been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
6. The criteria for service connection for peripheral neuropathy
of the left lower extremity have not been met. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2009).
7. The criteria for service connection for peripheral neuropathy
of the right lower extremity have not been met. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2009).
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice from VA must
inform the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA will
seek to provide and; (3) that the claimant is expected to
provide. See 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim by
the agency of original jurisdiction. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi,
18 Vet. App. 112 (2004).
Further, VA must review the information and the evidence
presented with the claim and provide the claimant with notice of
what information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to substantiate,
each of the five elements of the claim, including notice of what
is required to establish service connection and that a disability
rating and an effective date for the award of benefits will be
assigned if service connection is awarded. Dingess v. Nicholson,
19 Vet. App. 473 (2006)
In correspondence in November 2005, the RO provided notice that
met the requirements except that the notice did not provide
information on the criteria for assignment of a rating or
effective date. However, the Board concludes that such error was
harmless given that service connection is being denied, and hence
no rating or effective date will be assigned with respect to the
claimed disorders.
In addition, VA has obtained all relevant, identified, and
available evidence and has notified the appellant of any evidence
that could not be obtained. VA has also obtained medical
examinations with the exception of an examination for sleep apnea
for reasons provided below. In February 2005, the Veteran
reported to a clinician that he received treatment at a private
medical facility for sleep apnea. Despite a request by the
Appeals Management Center in December 2008, the Veteran did not
provide the address of the facility, dates of treatment, or
authorization for VA to obtain relevant records. Thus, the Board
finds that VA has satisfied both the notice and duty to assist
provisions of the law.
The Veteran served as a lineman in a U.S. Army signal corps unit
including service in the Republic of Vietnam from October 1968 to
October 1969. The Veteran contends that his skin disorder first
manifested in service; that his hypertension and sleep apnea are
secondary to service connected PTSD; and that peripheral
neuropathy of the upper and lower extremities is related to
exposure to herbicides in service.
Service connection may be granted for disability resulting from a
disease or injury incurred in or aggravated by military service.
For the showing of chronic disease in service, there must be a
combination of manifestations sufficient to identify the disease
entity and sufficient observation to establish chronicity at the
time. If chronicity in service is not established, evidence of
continuity of symptoms after discharge is required to support the
claim. Service connection may also be granted for a disease
diagnosed after discharge when all the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303.
In order to establish service connection for a claimed disorder,
there must be
(1) medical evidence of current disability; (2) medical, or in
certain circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown,
104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski,
3 Vet. App. 223 (1992).
Some chronic diseases may be presumed to have been incurred in
service, although not otherwise established as such, if
manifested to a degree of ten percent or more within one year of
the date of separation from service. 38 U.S.C.A. § 1112(a)(1);
38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R.
§ 3.309(a) (listing applicable chronic diseases, including
hypertension and organic diseases of the nervous system).
Service connection may also be granted for a disability that is
proximately due to or the result of a service-connected disease
or injury. 38 C.F.R. § 3.310(a). When service connection is
established for a secondary condition, the secondary condition
shall be considered a part of the original condition. Id.
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability exists
and (2) that the current disability was either (a) proximately
caused by or (b) proximately aggravated by a service-connected
disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en
banc). The Board notes that there was an amendment to the
provisions of 38 C.F.R. § 3.310 in 2006. See 71 Fed. Reg. 52744-
47 (Sept. 7, 2006). The amendment sets a standard by which a
claim based on aggravation of a non-service-connected disability
by a service-connected one is evaluated.
A veteran who served in the Republic of Vietnam between January
9, 1962, and May 7, 1975, is presumed to have been exposed to
certain herbicide agents (e.g., Agent Orange) during such
service, absent affirmative evidence to the contrary.
Service in the Republic of Vietnam includes service in other
locations if the conditions of service involved duty or
visitation in Vietnam. 38 U.S.C.A.
§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service personnel
records showed that the Veteran served in the Republic of Vietnam
from October 1968 to October 1969. Therefore, he is presumed to
have been exposed to herbicide agents.
Service connection based on herbicide exposure will be presumed
for certain specified diseases that become manifest to a
compensable degree within a specified period of time in the case
of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R.
§§ 3.307(a)(6), 3.309(e). The following diseases are associated
with herbicide exposure for purposes of the presumption:
chloracne or other acneform disease consistent with chloracne,
Type II diabetes, Hodgkin's disease, chronic lymphocytic
leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and
subacute peripheral neuropathy, porphyria cutanea tarda, prostate
cancer, respiratory cancers (cancer of the lung, bronchus,
larynx, or trachea), AL amyloidosis, and certain soft-tissue
sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).
Claims based on Agent Orange exposure are unique in that
entitlement is based on an analysis of scientific evidence,
ordered by statute. 38 U.S.C.A. § 1116(b). The Agent Orange Act
of 1991 (in part) directed the Secretary of Veteran Affairs to
enter into an agreement with the National Academy of Sciences
(NAS) to review and summarize the scientific evidence concerning
the association between exposure to herbicides used in support of
military operations in the Republic of Vietnam during the Vietnam
Era and each disease suspected to be associated with such
exposure.
Whenever the Secretary determines that a positive association
exists between exposure of humans to an herbicide agent and a
disease, the Secretary will publish regulations establishing
presumptive service connection for that disease. If the
Secretary determines that a presumption of service connection is
not warranted, he must publish a notice of that determination,
including an explanation of the scientific basis for that
determination. The Secretary's determination must be based on
consideration of NAS reports and all other sound medical and
scientific information and analysis available to the Secretary.
See 38 U.S.C.A. § 1116(b)-(c). In response to five NAS reports
(and a special interim report), the Secretary published notices
of these determinations in January 1994, August 1996, November
1999, January 2001, June 2002, May 2003, and March 2005.
In July 2007, NAS published its seventh full report, entitled
"Veterans and Agent Orange: Update 2006" (Update 2006).
Consistent with prior reports of NAS, Update 2006 again found
that there was "sufficient evidence of an association" between
herbicide exposure and five categories of diseases in veterans
and "limited/suggestive evidence'' of an association between
herbicide exposure and six other categories of diseases in
veterans. The presumptions of service connection for each of
these diseases were discussed above.
Update 2006 also categorized certain health outcomes as having
"inadequate/insufficient" evidence to determine whether they
may be associated with herbicide exposure and categorized
hypertension as having "limited or suggestive" evidence. In
June 2010, the Secretary of Veterans Affairs published
determinations regarding these diseases, based on all available
evidence in Update 2006 and prior NAS reports. The Secretary
determined that a positive association between exposure to
herbicides and hypertension does not exist. The Secretary also
reiterated that there is no positive association between exposure
to herbicides and any other condition for which he has not
specifically determined that a presumption of service connection
is warranted. See 75 Fed. Reg. 32,540 (June 8, 2010). NAS has
issued Update 2008, and the Secretary proposed rules that add
three additional disorders to the list of those for which the
presumption of service connection is available. The additional
disorders are not applicable in this appeal, and the proposed
rule is not yet final. See 75 Fed.Reg. 14,391 (Mar. 25, 2010).
Even if a veteran is not entitled to presumptive service
connection for a disease claimed as secondary to herbicide
exposure, VA must also consider the claim on a direct service-
connection basis. When a disease is first diagnosed after
service but not within the applicable presumptive period, service
connection may nonetheless be established by evidence
demonstrating that the disease was in fact incurred in service.
See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Skin Disorder
Service treatment records showed that the Veteran sought
treatment in Vietnam in April 1969 for scaling of the scalp and
hair loss. A clinician in a dermatology clinic diagnosed male
pattern baldness and prescribed an anti-dandruff shampoo. In
June 1969 the Veteran sought treatment for "foot problems." An
examiner prescribed an anti-bacterial soap and anti-fungal
surface medication. In an October 1969 medical history
questionnaire and discharge examination, the Veteran denied any
history of skin diseases, and a physician noted no skin
abnormalities.
In February 2005, a VA physician noted the Veteran's report of
episodic sores that appeared on his arms, legs, and abdomen that
occurred during and after military service and were progressively
becoming more severe. The Veteran reported that he did not seek
medical care in service. After service, he was once prescribed
an over-the-counter cream by a dermatologist. He reported no
other therapy, biopsies, or systemic symptoms. On examination,
the physician noted multiple carbuncles on the arms, legs, and
anterior chest, and scaling of the skin of the feet, elbow, and
hand. The physician diagnosed psoriasis over five percent of the
body area with no functional limitations or systemic signs.
In a January 2007 substantive appeal, the Veteran noted that his
skin rashes were treated by a military dermatologist in Vietnam.
In April 2008, a VA dermatologist noted the Veteran's report of
scaly rashes ever since returning from Vietnam. On examination,
the physician noted scaling patches on the elbows, fingers,
thigh, shin, ankles and plantar surface of the left foot. The
physician diagnosed plaque- type psoriasis vulgaris and
prescribed several surface medications.
In April 2009, a VA physician noted a review of the claims file
including the results of the VA examinations in 2005 and 2008.
The physician noted the Veteran's reports of some improvement
with the use of prescription surface medications. The physician
noted scaly patches on the ankles and elbows occupying two
percent of the body area and with no functional limitation. The
Veteran reported very vague skin symptoms in the form of pea
sized bumps on the buttocks and thigh that was not observed
during the examination. The physician diagnosed psoriasis that
appeared to be of more recent origin and concluded that it was
not clear whether the disorder was present during military
service.
The Board concludes that service connection for psoriasis is not
warranted. Presumptive service connection based on exposure to
herbicide is not warranted because psoriasis is not among those
diseases for which the presumption is available.
Service connection on a direct basis is not warranted because the
weight of credible evidence is that the disorder manifested after
service and is not related to any aspect of service. The Board
acknowledges the Veteran's statements that he incurred the skin
disease during service and sought treatment from a dermatologist.
The Veteran is competent to report on his observed symptoms. The
Board places less probative weight on his statements that his
current psoriasis first manifested in service because they are
inconsistent with the service records that showed treatment only
for foot fungus and dandruff. There was no follow up treatment.
No chronic skin disorders of the arms, chest, and legs were
reported by the Veteran or noted by the examining physician on
the October 1969 discharge examination. The Board places greater
probative weight on the VA physician's conclusion that the
current psoriasis had a more recent history.
The weight of the credible and probative evidence demonstrates
that the Veteran's current psoriasis first manifested many years
after service and is not related to his active service. As the
preponderance of the evidence is against this claim, the
"benefit of the doubt" rule is not for application, and the
Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Hypertension
Service treatment records are silent for any symptoms, diagnoses,
or treatment of hypertension in service. In an October 1969
discharge physical examination, the Veteran denied any history of
high or low blood pressure, and the examiner measured blood
pressure as 136/70 mmHg. The Veteran's height and weight were
five feet, nine inches, and 175 pounds.
In a December 2004 claim, the Veteran noted that he experienced
hypertension since 1968. In February 2005, a VA physician noted
the Veteran's report of having borderline high blood pressure in
and after service but that he had been using medication only for
the previous two weeks. The Veteran reported that he had no
history of stroke or heart disease but that he experienced
recurrent headaches. On examination, blood pressure was 140/90,
140/88, and 140/90 mmHg. The Veteran weighed 300 pounds. The
physician diagnosed essential hypertension, fairly well
controlled with medication. Another VA physician the same month
performed a neurologic examination and noted the Veteran's report
of a history of cigarette smoking of one pack per day for 30
years but that he had quit 20 years earlier.
In a January 2007 substantive appeal, the Veteran contended that
his hypertension was secondary to PTSD. In a June 2008 letter, a
VA social worker and psychiatrist noted that the Veteran had been
diagnosed with PTSD. The Veteran reported that increased stress
at work had caused episodes of elevated blood pressure. In
letters in July 2008, two private physicians also noted the
Veteran's reports of stress at work that combined with PTSD,
caused episodes of elevated blood pressure. The family practice
physician noted that PTSD was the trigger for episodes of severe
elevation of blood pressure. Another private physician noted
that the Veteran had received hospital treatment on two occasions
for chest pains and blood pressure spikes related to work stress.
This physician noted that the Veteran's blood pressure
medications were maximized and that any further control would
depend on treatment for PTSD. The clinicians did not note that
they had provided any immediate treatment for the episodes or
that they had observed or measured these symptoms. They did not
discuss a medical rationale for the conclusions.
In April 2008, a VA outpatient clinic nurse practitioner noted
the Veteran's reports of stress related to imminent loss of his
job that led to chest pain and very high spikes in blood pressure
requiring hospitalization. Despite requests by the RO, the
Veteran did not identify the date and location of his
hospitalization and no associated records were obtained.
However, a 17 question PTSD screening test was entirely negative
for any related symptoms. Blood pressure was measured as 160/100
mmHg.
In April 2009, a VA physician noted a review of the claims file
including VA records of examinations for hypertension and PTSD in
2005 and subsequent outpatient VA treatment. On examination, the
Veteran weighed 234 pounds and blood pressure was 120/70, 122/70,
and 122/72 mmHg. The physician noted that blood pressure was
normal on the day of the examination and that there were multiple
reasons for elevated blood pressure including a distant history
of cigarette smoking. The physician did not further discuss the
multiple factors and referred an assessment of the impact of PTSD
to mental health examiners.
Later in April 2009, a VA psychiatrist noted a review of the
claims file and the Veteran's reports of stopping work in May
2008 because of conflicts at work. The psychiatrist evaluated
the Veteran's PTSD symptoms as severe and impaired his ability to
maintain employment.
In July 2009, the VA physician and the VA psychiatrist provided
addenda to their April examination reports. The physician noted
that the Veteran had risk factors such as obesity and a history
of smoking that can contribute to hypertension. The physician
noted a review of medical literature that showed that essential
hypertension is not known to be caused by or aggravated
permanently or chronically by PTSD. The psychiatrist noted that
there was no research to support causation impact of PTSD on
hypertension, and therefore he could not identify a link or nexus
between PTSD and hypertension.
The Board concludes that service connection for essential
hypertension is not warranted. Direct service connection is not
warranted because hypertension first manifested greater than one
year after service. Service treatment records are silent for any
indications or diagnoses of hypertension with normal blood
pressure noted at the time of discharge. The Board acknowledges
the Veteran's report that he experienced high blood pressure
since 1968 which continued after service. The Veteran is
competent to report occasions when his blood pressure was
measured by a clinician and he was informed of the result and any
diagnosis. However, the Board concludes that his statement of
the onset of hypertension in service is not credible as it is
inconsistent with his own report and the measurements during the
discharge examination. The earliest credible medical evidence of
symptoms and diagnosis of hypertension was in 2005, many years
after service. Furthermore, the VA physician in April and July
noted multiple non-service causes for hypertension including
obesity and smoking.
The Board concludes that service connection for hypertension
secondary to PTSD is also not warranted. Two private physicians
noted that work stress combined with PTSD caused episodes of
elevated blood pressure and chest pain and one physician noted
that hypertension medication was maximized and that further
control depended on control of PTSD. The Board places less
probative weight on their statements because neither physician
provided clinical records or noted that he had provided any
treatment for the spiking episodes, and the Veteran did not
provide information sufficient for VA to assist in obtaining
relevant records. Neither physician provided a rationale for his
conclusion or discussed other possible causes for high blood
pressure.
The Board places greater probative weight on the opinions of the
VA physician and psychiatrist in 2009 who noted that the
Veteran's essential hypertension was not related to PTSD and
based their conclusions on a review of the history contained in
the claims file and on a review of medical literature. The Board
notes that despite the episodes of blood pressure spiking, the
Veteran's hypertension remained under control with medication,
and there has been no diagnosis of related cardiovascular
disease. After leaving his job, blood pressure measurements were
normal. The physician noted that likely causes for hypertension
other than PTSD included smoking and obesity. Moreover, the
Veteran continues to experience PTSD with severe symptoms but has
had no recurrence of blood pressure spiking since he left the
stressful environment of his place of employment. Even if PTSD
combined with workplace stress caused temporary symptoms, there
is no credible medical evidence of causation or chronic
aggravation of hypertension by PTSD. The Board also notes that
the Veteran has been rated as 100 percent disabled for PTSD since
May 2008 that the rating contemplates the Veteran's difficulties
in dealing with situational occupational and social impairment.
The weight of the credible and probative evidence demonstrates
that the Veteran's essential hypertension first manifested
greater than one year after service and is not related to his
active service or secondary to PTSD. As the preponderance of the
evidence is against this claim, the "benefit of the doubt" rule
is not for application, and the Board must deny the claim. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Sleep Apnea
Service treatment records are silent for any symptoms, diagnoses,
or treatment of sleep apnea in service.
In a December 2004 claim, the Veteran noted that he experienced
sleep apnea since 2003. He did not identify any source of
medical treatment. In a February 2007 substantive appeal, the
Veteran contended that his sleep apnea is secondary to PTSD.
In February 2005, a VA psychologist noted the Veteran's report
that he had been diagnosed with sleep apnea at some time in the
past. The psychologist noted the Veteran's reports of nightmares
and decreased sleep but no symptoms of transient attacks of a
failure of automatic control of respiration during sleep. The
same month, a VA physician performing a neurologic examination
noted the Veteran's report of heavy snoring at night and daytime
somnolence. The Veteran reported that he underwent a sleep
study, was diagnosed with sleep apnea, and provided a continuous
positive air pressure device at a private medical center two or
three years earlier. Despite requests by VA, the Veteran did not
provide the address, specific dates of treatment, or
authorization to obtain the relevant records.
In letters in May 2007 and June 2008, two private physicians
noted the Veteran's diagnosis and treatment for PTSD but did not
mention symptoms or diagnosis of sleep apnea. VA outpatient
medical and psychiatric records are silent for any symptoms,
diagnoses, or treatment of sleep apnea.
In April 2008, a VA psychologist noted a review of the claims
file and provided a detailed assessment of the Veteran's PTSD.
The psychologist noted the Veteran's reports of difficulty
falling asleep, frequent awakening, nightmares, thrashing, and
screams. The psychologist assessed these symptoms as related to
PTSD and not to a transient respiratory disorder.
The Board concludes that service connection for sleep apnea is
not warranted because the Veteran does not have a current
diagnosis of the disorder nor has he reported to VA or his
clinicians any symptoms of the disorder. The Veteran is
competent to report his observable symptoms and that he received
a diagnosis and treatment from a private medical provider.
However, the Board concludes that his reports are not credible
because he did not provide information necessary for VA to obtain
the records and because none of the subsequent clinicians or
examiners noted any symptoms of sleep apnea.
VA must provide a medical examination when there is (1) competent
evidence of a current disability or persistent or recurrent
symptoms of a disability, (2) evidence establishing that an
event, injury, or disease occurred in service, or establishing
certain diseases manifesting during an applicable presumptive
period for which the claimant qualifies, and (3) an indication
that the disability or persistent or recurrent symptoms of a
disability may be associated with the veteran's service or with
another service-connected disability, but (4) there is
insufficient competent medical evidence on file for the Secretary
to make a decision on the claim. McLendon v. Nicholson, 20 Vet.
App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. §
3.159(c)(4)(i). The third prong, which requires that the
evidence of record "indicate" that the claimed disability or
symptoms "may be" associated with the established event, is a low
threshold. McLendon, 20 Vet.App. at 83. In this case, an
examination is not warranted because there is no credible lay or
medical evidence of symptoms or diagnosis of a current sleep
apnea disability.
As the preponderance of the evidence is against this claim, the
"benefit of the doubt" rule is not for application, and the
Board must deny the claim. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Peripheral Neuropathy of the Upper and Lower Bilateral
Extremities
Service treatment records are silent for any symptoms, diagnoses,
or treatment for peripheral neuropathy. No neurologic symptoms
were reported by the Veteran or noted by a physician on an
October 1969 discharge physical examination. The Veteran denied
any symptoms or history of arthritis, back trouble, foot trouble,
and paralysis on a concurrent medical history questionnaire.
In a December 2004 claim, the Veteran noted that his peripheral
neuropathy first manifested in 2004. He did not indicate the
source of the diagnosis or treatment.
In an April 2006 notice of disagreement, the Veteran contended
that his upper extremity disorders were the result of repetitive
wrist motion in accomplishing his duties in service as a lineman.
In a January 2007 substantive appeal, the Veteran contended that
peripheral neuropathy of the lower extremities was related to
exposure to herbicide.
In February 2005, a VA physician noted the Veteran's report of
tingling, numbness, and parathesia of the hands, legs, and feet
and symptoms of bilateral carpal tunnel syndrome for the previous
few years. The Veteran reported that he experienced periodic leg
jerking at night that was observed noted during a sleep study at
a private facility. He reported that he was diagnosed with
restless leg syndrome. As noted above, the Veteran did not
provide sufficient information and authorization to obtain the
relevant records. The Veteran also reported that he had been
diagnosed with borderline diabetes mellitus, controlled with diet
and exercise. On examination, the physician noted sensory and
reflex deficits of the hands and lower legs and slight muscle
atrophy of the hands. The physician diagnosed peripheral
neuropathy of the upper and lower extremities likely secondary to
diabetes mellitus. However, an electrodiagnostic study of the
upper extremities performed the same day was normal showing no
evidence of carpal tunnel syndrome and no cervical spine
radiculopathy or neuropathy. An X-ray of the hands and wrists
showed degenerative changes and osteopenia.
In April 2008, the Veteran underwent vascular examination of the
lower extremities that showed no circulatory deficits. The same
month, a VA neurologist noted the Veteran's reports of increased
leg twitching at night and increased bilateral foot numbness.
The neurologist referred to the Veteran's diabetes but also
suggested the numbness could be caused by lumbar spine
radiculopathy and ordered a magnetic resonance image. The study
was obtained in November 2008 and showed mild anterolisthesis at
one level and disc dessication, narrowing, and compression at
several levels. The interpreting physician diagnosed mild
multilevel degenerative spondylosis at two levels of the lumbar
spine.
In May 2009, a VA physician noted a review of the claims file and
the Veteran's reports of his military duties as a lineman that
included repetitive motion of the wrists. The Veteran reported
continued hand numbness and symptoms of carpal tunnel syndrome
after extended periods of typing on a computer. The physician
noted the previous X-rays and electrodynamic studies that showed
osteopenia and degenerative changes of the wrists but no evidence
of carpal tunnel nerve damage or cervical spine radiculopathy or
neuropathy. On examination, the physician noted mildly decreased
pinprick sensation on the hands and fingertips and on both feet.
The physician diagnosed mild, stable, non-progressive bilateral
peripheral neuropathy of the upper and lower extremities
secondary to type 2 diabetes mellitus. The physician also
diagnosed mild carpal tunnel syndrome. However, the physician
concluded that there were no symptoms of carpal tunnel in
service. There were no indications of the disorder on the
electrodynamic studies in 2002, but there were X-ray indications
of arthritis. The neurologist concluded that the Veteran's
occupational tasks as a lineman in service were less likely than
not the cause of his current mild carpal tunnel syndrome.
The Board concludes that service connection for peripheral
neuropathy of the upper and lower extremities and bilateral
carpal tunnel syndrome is not warranted. Direct service
connection is not warranted because the disorders first
manifested many years after service and are not related to any
aspect of service including repetitive motion of the wrists as a
lineman. The Veteran denied and the examining physician noted no
upper or lower extremity abnormalities on the October 1969
discharge examination. The Veteran noted in his claim that the
symptoms first manifested in 2003 and the earliest medical
evaluation and diagnosis was in 2005.
The Board acknowledges the Veteran's belief that his upper
extremity neuropathy and carpal tunnel symptoms were caused by
his duties as a lineman in service. The Veteran does not contend
that his symptoms manifested in service or were continuous since
service. Determination of the cause for a neurologic disorder
requires medical expertise. The Board places greatest probative
weight on the opinion of the VA physician in May 2009 who
reviewed the entire history including the imaging studies and
concluded that the mild neuropathy of the upper extremities was
not related to the Veteran's service occupation.
Regarding peripheral neuropathy of the lower extremities, the
Board places greatest probative weight on the report of the VA
neurologist in April 2008 and the imaging studies obtained in
November 2008. Although the neurologist did not clearly
indicate an etiology for the restless leg syndrome and lower leg
numbness at the time of his examination, he ordered a study that
later confirmed the presence of lumbar spine disease. The Board
considered whether an additional examination is necessary to
decide the claim under the McClendon examination criteria
discussed above. The Board concludes that an additional
examination is not required because there is no other event,
injury, or disease in service and no suggestion by the Veteran or
clinicians or examiners of a relationship between the current
lower leg neuropathy and any aspect of service.
The Board further concludes that presumptive service connection
for peripheral neuropathy based on exposure to herbicides is not
warranted. For the purposes of this presumption, the term acute
and subacute peripheral neuropathy means transient peripheral
neuropathy that appears within weeks or months of exposure to an
herbicide agent and resolves within two years of the date of
onset. 38 C.F.R. § 3.309 (e), Note 2. In this case, the
Veteran's mild peripheral neuropathy did not manifest until many
years after service but remains current and has not resolved.
The Board considered whether service connection for peripheral
neuropathy is warranted as secondary to diabetes mellitus. The
VA physician in February 2005 noted this relationship in his
report. The Veteran is presumed to have been exposed to
herbicide in Vietnam, and diabetes mellitus is among those
diseases for which a presumption of service connection is
available. However, the medical evidence of record shows only
that clinicians acknowledged the Veteran's historical report of a
previous diagnosis of diabetes but does not contain sufficient
clinical examination, laboratory tests, and a concurrent
diagnosis. Moreover, the Veteran has not submitted a claim for
service connection for diabetes, and the disease is not currently
service connected. Therefore, service connection for peripheral
neuropathy as secondary to diabetes mellitus is not warranted at
this time.
The weight of the credible and probative evidence demonstrates
that the Veteran's mild peripheral neuropathy of the upper and
lower extremities and mild carpal tunnel syndrome first
manifested many years after service and are not related to his
active service or secondary to exposure to herbicide. As the
preponderance of the evidence is against this claim, the
"benefit of the doubt" rule is not for application, and the
Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for psoriasis, claimed as a skin condition, is
denied.
Service connection for hypertension is denied.
Service connection for sleep apnea is denied.
Service connection for peripheral neuropathy of the left upper
extremity and carpal tunnel syndrome is denied.
Service connection for peripheral neuropathy of the right upper
extremity and carpal tunnel syndrome is denied.
Service connection for peripheral neuropathy of the left lower
extremity is denied.
Service connection for peripheral neuropathy of the right lower
extremity is denied.
REMAND
With respect to claim for an increased rating for a disability, a
claimant presenting such a claim is presumed to be seeking the
highest possible rating. Floyd v. Brown, 9 Vet.App, 88, 102
(1996) (citing AB v. Brown, 6 Vet.App. 35, 38 (1993)).
In December 2006, the RO granted service connection and a 30
percent initial rating for PTSD. In correspondence in February
2007, the Veteran expressed timely disagreement with the assigned
rating. In September 2008, the Board remanded the issue of an
increased initial rating for PTSD for the RO to issue a statement
of the case and provide the Veteran with an opportunity to
perfect an appeal.
In a May 2009 VA mental health examination, a psychologist noted
the Veteran's report that the Social Security Administration
granted disability benefits as a consequence of PTSD effective in
November 2008. Although generally VA is not bound by that
determination, it is pertinent to the claim. Murinczak v.
Derwinski, 2 Vet. App. 363, 370 (1992). Because the SSA's
decision and the records upon which the agency based its
determination may be relevant to VA's adjudication of his pending
increased rating claim, VA is obliged to attempt to obtain and
consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002);
38 C.F.R. § 3.159(c)(2) (2007); see also Diorio v. Nicholson, 20
Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002).
In April 2010, the RO granted an increased initial rating of 50
percent prior to May 6, 2008 and a 100 percent schedular rating
thereafter. Because the highest possible rating was not granted
for the entire period of time covered by the appeal, a statement
of the case followed by an opportunity to perfect an appeal is
required. Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. Request from the Social Security
Administration copies of all adjudicative and
medical records associated with the award of
disability benefits to the Veteran for a
psychiatric disability. Associate any
records received with the claims file.
2. Provide the Veteran and his
representative with a statement of the case
concerning his claim for assignment of a
higher initial evaluation for service
connected PTSD with an opportunity to perfect
an appeal if desired. If, and only if, the
Veteran perfects a timely appeal, return the
claim to the Board.
The purpose of this remand is to assist the Veteran with the
development of his claim. The appellant has the right to submit
additional evidence and argument on the matter the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the appellant
that the conduct of the efforts as directed in this remand, as
well as any other development deemed necessary, is needed for a
comprehensive and correct adjudication of his claims. His
cooperation in VA's efforts to develop his claim, including
reporting for any scheduled VA examination, is both critical and
appreciated. The appellant is also advised that failure to
report for any scheduled examination may result in the denial of
a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2007).
______________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs